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Adaikappu Chettiar Vs. Ayesha Natchiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1975)2MLJ298
AppellantAdaikappu Chettiar
RespondentAyesha Natchiar
Cases ReferredSusema Bala v. Bibhuti Bhusan
Excerpt:
- .....decreed the plaintiff's claim.2. the first point that arises for determination is whether the suit mortgage is unsupported by consideration to the tune of rs. 1,400. exhibit a-1 is the notarial deed of mortgage admittedly executed by the defendant in favour of the plaintiff on 29th september, 1965 for rs. 11,400. in this document the defendant has clearly admitted that he received the entirety of this amount 'out of the view' of the notaire and the attestors to the document. his present contention is that a sum of rs. 1,400 out of the sum of rs. 11,400 was retained by the plaintiff for adjustment of future interest at a higher rate. the plea was not put forward by him, on his receipt of the notice, which the plaintiff sent the defendant prior to the suit. in fact, the defendant did.....
Judgment:

S. Maharajan, J.

1. This is an appeal filed by the defendant against the judgment of the learned Subordinate Judge of Karaikal decreeing the plaintiff's suit on foot of a mortgage executed by the defendant in favour of the plaintiff, and granting a preliminary decree in her favour. The defendant in his answer contended that the mortgage was unsupported by consideration to the extent of Rs. 1,400. He also pleaded partial discharge. The Court below rejected the evidence of the defendant, accepted that of the plaintiff and fully decreed the plaintiff's claim.

2. The first point that arises for determination is whether the suit mortgage is unsupported by consideration to the tune of Rs. 1,400. Exhibit A-1 is the notarial deed of mortgage admittedly executed by the defendant in favour of the plaintiff on 29th September, 1965 for Rs. 11,400. In this document the defendant has clearly admitted that he received the entirety of this amount 'out of the view' of the Notaire and the attestors to the document. His present contention is that a sum of Rs. 1,400 out of the sum of Rs. 11,400 was retained by the plaintiff for adjustment of future interest at a higher rate. The plea was not put forward by him, on his receipt of the notice, which the plaintiff sent the defendant prior to the suit. In fact, the defendant did not care to reply to the plaintiff's notice at all. What is worse, the defendant's own account book Exhibit B-2 says that on 28th September, 1965, that is to say, a day prior to the execution of Exhibit A-1, he received the entire sum of Rs. 11,400 from the plaintiff. Nothing could be more disastrous than this written admission in the defendant's own account book. The Court below rightly rejected the defendant's case in this behalf.

3. The second point that arises for determination is whether the partial discharge pleaded by the defendant is true. According to the defendant, he paid a sum of Rs. 1,824 towards the suit bond on 1st February, 1968 and at that time a further sum of Rs. 798 was surreptitiously collected by the plaintiff from the defendant on account of advance interest for a future period. The admitted endorsement on the bond shows that one Savarirajan paid a sum of Rs. 1,824 to the plaintiff on 1st February, 1968 and made an endorsement to that effect on the bond and that one Swaminathan wrote out this endorsement. Neither Sovarirajan nor Swaminathan has been put into the witness box to speak to the story that a pie more than Rs. 1.824 was paid by the defendant to the plaintiff on that date. The defendant's own account Exhibit B-2 shows that only a sum of Rs. 1,824 was paid towards the bond on 1st February, 1968. When asked to explain why the alleged additional payment of Rs. 798 was neither endorsed on the bond nor entered in the defendant's own account book, the learned Counsel for the appellant submitted that though it has not been entered in the account book on 1st February, 1968 it has been entered on 4th July, 1969, that is to say, one year and, five months later. I find that the entry dated 4th July, 1969 shows that a sum of Rs. 798 was paid, not to the plaintiff but to one A. M. S. Arunachala. Arunachala has not been examined. Further, there is no receipt to vouch the alleged payment. The entry Exhibit B-3 does not show that it relates to the suit document, and even if it did, the belatedness of the entry remains unexplained. The entry being unilateral has been rightly rejected by the Court below.

4. It is next contended that the defendant has paid a sum of Rs. 1,000 towards the bond on 26th February, 1969. One wonders why this payment has not been endorsed on Exhibit A-1, in the manner in which the payment of Rs. 1,824 was endorsed. No receipt was also obtained from the plaintiff in respect of this payment* The uncorroborated and unilateral entry made by the defendant in his own account book has no evidentiary value, and it has been rightly discredited by the Court below. This point is answered against the appellant.

5. Learned Counsel for the appellant raises for the first time before me a plea of law which was not raised either in the pleading or in the Court below. According to the learned Counsel, the hypothecation bond executed before the notaire was executable straightaway under the French law without any suit being filed, any decree being obtained thereon, and the Court below therefore had no jurisdiction to entertain the suit on the mortgage. The suit was filed on 9th July, 1970 after the introduction of the Indian Civil Procedure Code on 5th September, 1968. The mortgage bond was executed on 29th September, 1965, when the French Code Civil and the Code De Procedure Civil were in full force. The law by which the Indian Civil Procedure Code and certain other Indian enactments were extended to Pondicherry is the Pondicherry (Extension of Laws) Act, 1968. Section 4 (1) of that Act says that any law in force in Pondicherry or any area thereof corresponding to any Act referred to in Sub-section (1) of Section 3 or any part thereof (except in so far as such law continues to be applicable to Benoncants) shall stand repealed as from the coming into force of such Act in Pondicherry. Clause (2) of Section 4 says that nothing in Sub-section (1) shall affect (a) the previous operation of any law so repealed or anything duly done or suffered thereunder; or (b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed; or (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or (d) any investigation, legal proceeding or remedy in respect of any such right privilege obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed. The proviso to Section 4 runs as follows:

Provided that anything done or any action taken (including any appointment or delegation made, notification, instruction, or direction issued, form, bye-law or scheme framed, certificate obtained, permit or licence granted, or registration effected) under any such law, shall be deemed to have been done or taken under the corresponding provision of the Act extended to Pondicherry by this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under the said Act.

6. Under the French Law, a grosse copy of a notarial mortgage deed could be executed as if it were a decree granted by a Court of law. There was no need under the French system for the mortgagee to file a suit, pay Court-fee on the plaint, obtain a preliminary decree and then a final decree and then put that final decree in execution against the hypotheca. The notarial mortgage deed could be entrusted straightaway to a 'huissier' and executed in accordance with the French Procedure, the details of which I need not go into now. The question arises whether after the French Procedure Code was replaced by the Indian Civil Procedure Code, a person in the situation of the plaintiff, holding a grosse copy of a notarial mortgage deed is disentitled under the Indian law to file a plaint on foot of the deed paying Court-fee thereon and obtain a decree in accordance with the Indian Civil Procedure; but should proceed to enforce the notarial bond straightaway. In fact, learned Counsel for the appellant went the length of saying that the Civil Court would have no jurisdiction to-entertain the suit filed by the holder of a notarial mortgage deed on foot thereof. I am entirely unable to agree. The question whether plaintiff was entitled to execute the notarial mortgage deed without obtaining a decree thereon is one which does not call for adjudication in this appeal, though it may not be irrelevant to refer to a Full Bench decision of the Calcutta High Court in Susema Bala v. Bibhuti Bhusan : AIR1973Cal295 . There it has been held that a grosse copy of a notarial mortgage deed could be executed even after the Indian law has come into force without a decree being obtained. According to the Full Bench of the Calcutta High Court, the right obtained under the grosse copy of the notarial mortgage deed is a substantive right and not a procedural one and it must be preserved under the Indian Law after the merger. According to the learned Judges, a person in the position of the plaintiff could execute Exhibit A-1 as if it were a decree by filing an execution petition in the Indian Court, and praying for the sale of the hypotheca straighaway. Upon this question, I do not wish to pronounce any opinion. The distinction between substantive rights recognised by French Law and mere procedural rules of French Law will have to be drawn sagaciously with regard to the relevant circumstances of each case and the distinction cannot be exhaustively illustrated in vacuo. For instance, the requirement of French Law that notice of the deposit of 'Cahierdes charges' shall be served on the debtor and all the creditors and other persons mentioned in Article 692 of the Code de Procedure Civile is a matter of substance and ought to be complied with by the Indian Court acting within the framework of the Indian Civil Procedure Code. But the requirement of the French Law that the service of notice, shall be effected through huissiers is merely a procedural matter, which the Indian Courts can ignore. No litigant can be heard to say that service by process-servers under the watchful supervision of the Indian Courts is less efficacious than service by French huissiers. There may, however, be intermediate cases such as the imposition of time limits by French Law with reference to service of notices. It is for the Judges to consider judicially whether such time limits affect the substance of the thing or are merely procedural in character. The 'substantive' may shade off by imperceptible degrees into the 'procedural' and it is for the Court to draw the line between the two, remembering the purpose of the distinction. The right to execute a notarial mortgage deed straight away without filing a plaint paying Court-fee, obtaining decree and exposing the claimant to the dilatory tactics of his opponent is, I fancy, a valuable right and a substantive right. But the question is whether the holder of a copy of a notarial mortgage deed is confined under the Indian Law to the remedy which he had under the French Law. What Section 4 (2) of the Pondicherry (Extension of Laws) Act, 1968 says is that nothing in Sub-section (1) shall affect any right, privilege, obligation, etc., acquired or accrued under the French Law that has been repealed. There is nothing in this section which shuts out the person who has acquired such a right under the French Law from the portals of the Indian Courts and from the remedy to which, under the Civil Procedure Code and under the Indo-Anglian system of jurisprudence he would undoubtedly be entitled to. A holder of a mortgage, although it has been granted under the French Law and procedure, is certainly entitled under the Civil Procedure Code to file a suit in accordance with the procedure thereof. Section 9 of the Civil Procedure Code says that the Court shall subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognisance is either expressly or impliedly barred. It is not contended by the learned Counsel for the appellant that the suit filed by the plaintiff in the Court below is not a suit of a civil nature. What he contends is that inasmuch as the plaintiff had an alternative remedy under the French Law to proceed to enforce the notarial mortgage deed without resort to a Court of law, it is not competent for him to file a suit on Exhibit A-1 in the Indian Court and obtain a decree in accordance therewith. It is indeed an irony that this argument should come out of the mouth of the defendant who has fully exploited the opportunity given to him by the plaintiff. If the plaintiff has chosen to enforce her privilege under the French Law by putting the notarial mortgage deed in execution straightaway, the defendant would not have had the opportunity of dragging on the proceedings for nearly five years and raising the defences which under the French Law he could not raise. What Section 4 of the Pondicherry (Extension of Laws) Act, 1968 does is not to shut out the erstwhile French citizen from having resort to the Indian Civil Court but to protect and preserve whatever rights and privileges he might have had under the French Law, which has been repealed. When a person who enjoyed such a privilege, filed a suit in the ordinary civil Court on foot !of a notarial mortgage deed, it is the plain duty of the Court to entertain it under Section 9 of the Indian Civil I Procedure Code. The argument that the Court has no jurisdiction to entertain the suit or that the plaintiff has no remedy open to her under the Indian Law by way of enforcing the mortgage in an action of this kind is to disregard the nature and amplitude of the saving provisions of the Pondicherry (Extension of Laws) Act, 1968. I have little hesitation in rejecting this contention of the appellant and in holding that even though |the plaintiff might have had the alternative relief of enforcing the mortgage as if it were a decree without resorting to |an action in a civil Court, undoubtedly she shared with the other Indian Citizens the right to file a suit on the mortgage deed in a civil Court, obtain a decree and 'then proceed to execute it.

7. It was lastly argued by the learned Counsel for the appellant that costs ought to have been awarded by the Court below on an admission scale so far as the sum of Rs. 10,000 is concerned and on the contested scale only in respect of the balance of the plaintiff's claim. Having regard to the nature of the pleas raised by the defendant in the Court below, I do not think it right to interfere with the discretion of the Court below in awarding costs. Further, it is not as if the defendant confessed judgment in respect of the entire claim of the plaintiff. I am unable to hold that the Court below exercised its discretion unjudiciously while fixing the scale and quantum of costs payable by the defendant.

8. In the result, the appeal fails and the same is dismissed with costs.


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